Justice Oliver Wendell Holmes is often said to have been the greatest American judge. He was conservative in the older sense of the term, faithful to precedent and history, but he welcomed adaptations of the law to new realities. His thought and character stand as a rebuke to today's activists of the Right. Some reflections on the Constitution, originalism and the Supreme Court.

Friday, April 4, 2014

Money Talks, But Too Loudly

Wednesday's decision by the Supreme Court in the latest campaign-funding case, McCutcheon v. FEC, has prompted much valuable commentary, but maybe it is worth adding a few words concerning the tacit rejection of Justice Holmes's constitutional views and methods. Justice Breyer in his opinion for the dissenters quotes Holmes's famous dissent in Abrams v. United States (1919). The reason to limit campaign contributions, Breyer says, is that by amplifying the voices of a few wealthy individuals, large expenditures can wreck the "marketplace of ideas" on which our democracy depends. The phrase, for which no attribution was needed or given, of course is Holmes's image for the peaceful discourse on which constitutional government depends. He was not interpreting the First Amendment, he was expressing a structural principle of the Constitution. Even if the Sedition Act, at issue in the Abrams Case, was consistent with the Constitution, and even if throwing leaflets from a window, urging a general strike, could be understood to pose a "clear and present danger" of harm to the nation's efforts in wartime, the draconian sentences imposed in the case showed that the defendants were being punished, not for what they said or did, but for the beliefs that they held. In order to ensure that republican government functions as intended, the Constitution requires some restraints on speech and on the press: no megaphones in enclosed spaces, please; no false shouts of "fire" in a theater, causing a panic.Chief Justice Roberts expressly rejects this manner of deciding cases that arise under the First Amendment, at least so far as a law is said to be necessary to protect the integrity of the political process:

[T]here are compelling reasons not to define the boundaries of the First Amendment by reference to such a generalized conception of the public good.

The rich and the poor alike are free to give money to candidates and parties, no disagreement there. Money talks. But no right is absolute, and we limit freedom of speech and association in numberless ways, for the good of the community. The difficulty with Justice Roberts' opinion is that it lays out a doctrine, based largely on the language of his own prior opinions, that only a clear and present danger of selling government favors, or the appearance of doing so, can justify limitations on political expression or association.

Justice Holmes famously said that the clear and present danger of a crime would justify punishment of otherwise protected speech. In Buckley v. Valleo the Court upheld portions of the campaign finance law against its first challenge, saying that the risk of bribery, and the appearance of bribery, was sufficient for the government to impose limits on individual contributions. Rogers' doctrine overrules that precedent and turns Holmes on his head. It makes the equivalent of bribery the only justification for limiting campaign contributions. Justice Breyer energetically points out that this is a new doctrine that is not justified by any precedent, not even by Roberts' own past opinions. It is a legislative pronouncement for future application. One imagines briefs are already being written, arguing that the few remaining limits on contributions are unjustified, since a Congressman is not likely to be bribed solely by a gift of $2600. . . .

Among the many legal questions raised by Roberts' doctrine is the awkward circumstance that in this case it rests upon what he claims to be a factual refutation of the purpose of the law in question. But more about the doctrine and the supposed facts on which it rests, later.